Do Cases Matter? The Advice of Justice Posner

After authoring more than 3,300 judicial opinions, Richard Posner suddenly retired from the United States Court of Appeals for the Seventh Circuit in September of 2017. An unofficial “exit interview” Posner granted to the New York Times affirmed the common knowledge of generations of attorneys: A great attorney knows the judge. Although not hostile to the judicial system, Posner’s exit interview reveals that courts rely on past precedent far less than practicing litigators would hope.

Litigators of all stripes inevitably contact an opinion authored or influenced by Justice Posner. The former Chief Justice of the United States Court of Appeals for the Seventh Circuit, and previously under consideration for the United States Supreme Court, Posner’s distinctive writing style was second only to the late Antonin Scalia. Upon his 1981 appointment to the Court of Appeals, Posner’s interest in economics (he previously was an assistant to the Commissioner of the Federal Trade Commission) came to bear on his rulings at the same time that financial services and securities became a more prominent part of the country’s economy.

Today, Posner is recognized as being one of the leading voices advocating law and economics, grappling with the research of Nobel Prize recipients such as Ronald Coase and Gary Becker in his opinions and other writing. From 2004 until Gary Becker’s 2014 death, both Posner and Becker contributed regularly and prolifically to their joint blog.[2] Posner’s non-judicial writing reached far beyond that realm, though, grappling with subjects including national security, literature, and—most relevantly—judicial thinking.

How Judges Think: The Posner View

In his observation of judges, Posner notes that some “are, you know, reactionary beasts.” Posner explained: “They’re reactionary beasts because they want to manipulate the statutes and the Constitution in their own way.” Despite this observation, Posner notes the “very strong formalist tradition in the law,” where judges sincerely apply the Constitution and relevant statutes—unless they themselves are unconstitutional—as if sacrosanct.

Where statutes, precedent, and even the Constitution do not matter, effective presentation steps into the breach. “A case is just a dispute. The first thing you do is ask yourself – forget about the law – what is a sensible resolution of this dispute?” Hardly an endorsement of “feels-over-reals” emotion-driven legal consequentialism, Posner’s view acknowledges the reality that the law will rarely permit an absurd result.

Within his interview, Posner acknowledges how this is done. In determining whether some precedent or other legal requirement obstructs a desired ruling, Posner notes “that’s actually rarely the case.” “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.” Just one more thing that law schools do not teach their students.

When in private practice, one of the sitting district judges for the United States District Court for the Western District of New York had a sign in his office that read, “whoever tells the best story wins.” Posner’s exit interview confirms the accuracy of this advice, even amidst all the disillusionment it may bring to legal formalists. This advice—also the title of Annette Simmons’ book about communicating more effectively—is regularly repeated by trial lawyers and more experienced litigators, but so infrequently ingrained in younger attorneys.

The Limits of Well-Intended Advice

Posner’s advice is not a panacea. While well-regarded and even admired by many, Posner was a firebrand in his later years. In a July 2017 interview with Slate, Posner went out of his way to critique several Supreme Court justices, living and dead, decrying Brennan, Blackmun, Stevens, and Souter as “not giants.”[3] “Anyone think there’s a giant or giantess on the Supreme Court today?” Posner asked before he abruptly retired, slipping out from under the specter of being reversed by the country’s highest court.

What the now-former justice recommends may not be advisable before every judge. Some of them, if not many or even all, will decide a motion or even an entire case based on the applicable subsection buried deep within the Code of Federal Regulations.[4] His parting commentary vindicates so much of what experienced litigators have told and tried to train dozens if not hundreds of other attorneys to do, though, that it can hardly be ignored.